South Carolina Dept. of Highways and Public Transp. v. E.S.I. Investments, N-W

• Decision Date: 13 January 1997
• Docket Number: No. 2487,N-W,K-M,2487
• Citation: 470 S.E.2d 387,322 S.C. 147
• Court: South Carolina Court of Appeals
• Parties: S.C. DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. E.S.I. INVESTMENTS, a South Carolina General Partnership, and The South Carolina National Bank, Mortgagee; Protective Life Insurance Company, Mortgagee; The Associates Financial Services, Leasee; One Price Clothing $7 Store # 53, Lessee; Variety Wholesalers, Lessee; Pic 'n' Pay Shoes of Charleston, Lessee; Custom Furnishings, Lessee, Book Exchange, Lessee; Carolina Casuals, Lessee; A Total Look, Lessee; Ace TV Rentals, Lessee; P.J. Suds-ash, Lessee; Revco Discount Drug Centers of South Carolina, Incorporated # 1204, Lessee; andart # 9509, Lessee; Liquor Store, Lessee; Big Star # 2730, Lessee, and Other Condemnees, of Whom E.S.I. Investments is the Respondent. SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. E.S.I. INVESTMENTS, a South Carolina General Partnership, Landowner, and First Palmetto State Bank and Trust Company, Incorporated, Mortgagee and Other Condemnees, of Whom E.S.I. Investments is the Respondent, SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. E.S.I. INVESTMENTS, A South Carolina General Partnership, Landowner, and The South Carolina National Bank, Mortgagee, Protective Life Insurance Company, Mortgagees, of Whom E.S.I. Investments is the Respondent.

Page 387

470 S.E.2d 387

322 S.C. 147

S.C. DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. E.S.I. INVESTMENTS, a South Carolina General Partnership, and The South Carolina National Bank, Mortgagee; Protective

Life Insurance Company, Mortgagee; The Associates Financial

Services, Leasee; One Price Clothing $7 Store # 53, Lessee;

Variety Wholesalers, Lessee; Pic 'n' Pay Shoes of

Charleston, Lessee; Custom Furnishings, Lessee, Book

Exchange, Lessee; Carolina Casuals, Lessee; A Total Look,

Lessee; Ace TV Rentals, Lessee; P.J. Suds-N-Wash, Lessee;

Revco Discount Drug Centers of South Carolina, Incorporated

# 1204, Lessee; and K-Mart # 9509, Lessee; Liquor Store,

Lessee; Big Star # 2730, Lessee, and Other Condemnees, of

Whom E.S.I. Investments is the Respondent.

SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC

TRANSPORTATION, Appellant, v. E.S.I. INVESTMENTS, a South Carolina General Partnership,

Landowner, and First Palmetto State Bank and Trust Company,

Incorporated, Mortgagee and Other Condemnees, of Whom E.S.I.

Investments is the Respondent,

SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC

TRANSPORTATION, Appellant, v. E.S.I. INVESTMENTS, A South Carolina General Partnership,

Landowner, and The South Carolina National Bank, Mortgagee,

Protective Life Insurance Company, Mortgagees, of Whom

E.S.I. Investments is the Respondent.

No. 2487.

Court of Appeals of South Carolina.

Submitted Feb. 6, 1996.

Decided March 18, 1996.

Rehearing Denied May 23, 1996.

Certiorari Granted Jan. 13, 1997.

Richard D. Bybee, of Smith, Bundy, Bybee & Barnett, Charleston; and Natalie J. Moore, of S.C. Dept. of Transportation, Columbia, for appellant.

Evans Taylor Barnette and Thomas E. McCutchen, both of McCutchen, Blanton, Rhodes & Johnson, Columbia, for respondent.

HEARN, Judge:

These are consolidated condemnation cases in which the condemnor, the South Carolina Department of Highways and Public Transportation, appeals an order granting a new trial to the landowner, E.S.I. Investments. We reverse. ¹

The Department of Highways and Public Transportation sought to acquire a portion of three tracts of land owned by E.S.I. Investments. One of the tracts was improved with a shopping center known as Heritage Square Shopping Center. During the course of the trial, the Highway Department presented the testimony of two of three appraisers it hired to value the property. These appraisers gave estimates of just compensation based on the value of land taken, but concluded there would be no damage to the remainder. Their appraisals estimated just compensation ranging from $49,872 to $110,714. The third appraiser retained by the department concluded the highest and best use of the property in its prior situation was warehouse distribution rather than shopping center use and the access changes made by the department during construction would accelerate that use. He concluded just compensation was $210,000 which included the value of the land taken and damages to the remainder. The landowner wanted to introduce the testimony of this appraiser, Christopher Donato, and to identify him as having been employed by the Highway Department. The department objected asserting it would be unduly prejudicial to have Donato identified in this manner.

The trial court ruled Donato could be presented as a witness, but the landowner could not ask him about his employment by the department on these cases. Given this restriction, the landowner decided not to call Donato. The witnesses for the landowner estimated just compensation between $1,876,600 and $2,200,000. The jury returned a verdict for $150,000.

E.S.I. Investments filed a motion for a new trial arguing it was denied a fair trial because it should have been permitted to call Donato and to identify him as having been employed by the Highway Department. The court granted the motion, concluding it erred in its trial ruling and adopting the position espoused in Bd. of Educ. of S. Sanpete Sch. Dist. v. Barton, 617 P.2d 347 (Utah 1980).

The Highway Department argues the court erred in granting the new trial motion, asserting the evidence of Donato's employment is irrelevant and unduly prejudicial. We concur.

In basing its decision to grant a new trial on the reasoning expressed in Bd. of Educ. of S. Sanpete Sch. Dist. v. Barton, the trial court embraced the minority rule on this issue. The majority of the courts that have addressed...